Breath Testing: Intoxilyzer 5000

Davis v. State
A07A1356, July 9, 2007Ellington, Judge.07 FCDR 2429 (07/27/07)

The Court of Appeals held that four breath tests registered on two breath strips both of which produced only one numerical sample and one insufficient sample were two adequate sequential samples for purposes of O.C.G.A. 40-6-392.  

 Steinberg v. State
A07A0312 (criminal case)
June 25, 2007
Phipps, Judge.
07 FCDR 3132 (07/13/07

What is "probable cause" to arrest for DUI? The test of probable cause requires merely a probability —less than a certainty but more than a mere suspicion or possibility. To arrest a suspect for driving under the influence, an officer need only have knowledge or reasonably trustworthy information that the suspect was actually in physical control of a moving vehicle, while under the influence of alcohol to a degree which renders him incapable of driving safely.

This is typically demonstrated by less safe driving like weaving or an accident; by manifestations of driving like odor of alcohol, red and glassy eyes, slurred speech and unsteadiness on feet or lack of balance; or by demonstration of "clues" on voluntary standardized field sobriety tests (yes, they are voluntary) like jerking eyes on the HGN, missing heel to toe on the walk and turn and putting your foot down on the one leg stand withing 30 seconds.   Few people realize that these tests measure your ability to follow instructions as much or more than your ability to balance and your coordination.  It is never in your interest to take the HGN.  Under some circumstances, field sobriety evaluations like the one leg stand and walk and turn can be taken if you are sober or just had a few beers.  You have to balance whether it would look worse to take the tests or to refuse the tests, so there is no easy answer. 

The Court also found that even if the Jury finds no credibility in the Officers underlying traffic stop that does not undermine the Trial Judge's ruling that the traffic stop was credible.

Implied Consent Rights
State v, Underwood
A07A0576 (criminal case)
June 1, 2007
Adams, Judge.
07 FCDR 1858 (06/22/07)

Underwood was stopped under suspicion of hit and run and admitted to possessing marijuana in Cherokee County north of Atlanta.  The Defendant  was arrested by the Officer for possession of marijuana.  He was not told that he was arrested for DUI although the Officer testified that he also intended to arrest for DUI but did not tell the Defendant that he was arrested for DUI.  The Court of Appeals held that consent is not implied until the Defendant is arrest for DUI and not just if probable cause to arrest for DUI is present.  The Trial Court excluded the breath test result and the Court of Appeals affirmed the Trial Court.  

During a DUI investigation, police must arrest you prior to reading the breath test rights or implied consent rights.  If they do not, the breath test can be suppressed.  As consent is not implied until after arrest, officers can not arrest you for “suspicion” of DUI in Georgia and then take you to the station to see how you do on the sit down “intoxilyzer 5000″ breath test or the state administered chemical test.  The field breath test is not admissible as to a result, only positive or negative.  So comments like "if you pass the state test, I let you go" or "if you blow under 0.08, I won’t charge you with DUI" or "if you blow under 0.08 you are good to go" equal a breath test excluded from evidence.  See, Cooper v. State, 277 Ga. 282 (2003)(holding that chemical testing of a Defendant’s blood in the absence of probable cause violates the Fourth Amendment prohibition against unreasonable searches and seizures and holding that implied consent without probable cause is illegal); Buchanon v. State, 264 Ga. App. 148 (2003)(holding that consent is only implied if a person is arrested for a violation of O.C.G.A. § 40-6-391 and implied consent prior to arrest or without probable cause is improper) Handschuh v. State, 270 Ga. App. 676, 607 S.E.2d 899(Dec 01, 2004)(holding that the statute, as it now stands, provides that consent is implied only if a person is arrested for a violation of OCGA § 40-6-391, while probable cause of DUI may provide the impetus to give the implied consent warning, under OCGA § 40-5-55(a) the implied consent test is only upheld where an arrest has actually been effectuated.) Affirmed by Hough v. State, 279 Ga. 711; 620 S.E.2d 380 (2005)(Holding where accident resulted in serious injuries and officer had probable cause to believe that defendant was driving under influence, officer did not need to arrest defendant before reading of implied consent rights. However, where accident did not involve serious injuries, suspect needed to be under arrest before implied consent rights were read). 

We have won several DUIs using this defense.

In Jones v. State, A07A0789, May 10th, 2007 case, the Court of Appeals affirmed the judgment of the trial court.  However, the Court did hold that conviction of a crime following a trial in which perjured testimony on a material point is knowingly used by the prosecution is an infringement on the accused's Fifth and Fourteenth Amendment rights to due process of law.  However, in the case at bar the Court found the shortcomings in the officer's testimony "mere inconsistencies" not rising to the level of perjury.   The Appellant Jones proceeding pro se appealed and he did not  use available transcripts and other materials available to support his claim of perjury but relied on the officers' testimony alone.   The Appellant also raised the issue of proper implied consent and that Intoxilyzer 5000 was working properly.   This case illustrates the important fact that a perons who represents himself has a fool for a client.  

In Rackoff v. State, the Georgia Supreme Court held that breath test calibration certificates did not violate the U.S. Supreme Court Crawford Decision regarding  the consitutional right to confrontation because they are not made for a particular Defendant, and therefore, are not testimonial and not covered by the right to confrontation.  This raises an interesting issue.  If calibration certificates are not testimonial, what about GBI Blood Test Reports signed by forensic toxicologist but done by GBI lab techs who are not in court.  A blood test is made for one Defendant.  I love the smell of Crawford in the morning, it smells like... Consitution.  The Following is a brief excerpt on the subject:

 DUI Law: Implied Consent Rights
State v. Stelzenmuller
A07A0767 (criminal case)
May 10, 2007
Smith, Presiding Judge.
07 FCDR 1520 (05/25/07)

In Stelzenmuller, the Georgia Court of Appeals affirmed the Trial Court's granting of motion to suppress with regard to the State's failure to prove the reading of the implied consent rights after arrest.  What happened was the Defendant had alleged that Implied Consent was not read prior to arrest as required by Hough v. State, and the Court chose to disbelieve the Officer.  The Officer testified that he told the Defendant she could go home but she had to go to the DeKalb County Jail first.   The Trial Court found that this statement would cause an ordinary reasonable Defendant that this was not an arrest but only a temporary detention.  This is an interesting case because (a) it reaffirms that implied consent must be made prior to arrest and (b) suggests that ambiguous statements by the officer like "you can go home after you go to the jail," "if you blow under the legal limit I won't charge you with DUI," "if you blow under the legal limit you are good to go," and "taking the State Administered Breath test is no a lose/lose situation, you might win if you take the State Breath Test and blow under the legal limit" can result in the detention being deemed temporary in nature and less than the custodial detention required by the Implied consent statute.  

The Georgia Department of Driver Services can not suspend the driver's license of a non-resident, but it can suspend the privilege to drive on the highways of the State of Georgia of a non-resident drvier. In McHugh v. State, A07A0323, April 17, 2007, the Officer told the Defendant out of state licensed driver, "what I am about to read you deals with your license to drive and your privilege to drive in Georgia, okay."  The Court of Appeals held that this "vague" and "indefinite" "attention grabbing preface" was not the equivalent of stating that the driver would have his out of state license suspended if he refused the test.  It was merely an "introductory statement" to the implied consent and not additional, deceptively misleading information that would impair a defendant's ability to make an informed decision about whether to submit to testing.  The Court listed statements that were "deceptively misleading" in these circumstances as follows: "you're automatically charged with DUI and your license is going to be suspended"; "he would lose his driver's license"; "license may be suspended for a minimum period of one year"; "you will lose your privilege to operate a motor vehicle from six months to one year"; and "your driver's license will be suspend for six months."

    Get out the soma.  Its time for another two minutes of hate and to party like its 1984.  This is the worst kind of Orwellian Doublespeak.  And remember:

• WAR IS PEACE
• FREEDOM IS SLAVERY
• IGNORANCE IS STRENGTH

Refreshing a witnesses recollection is a method where a lawyer uses any item to refresh a witnesses recollection in court while on the witness stand.  In Ford v. State, A07A0331, April 13, 2007, the Court of Appeals held that a booking photograph can be used to refresh an officer's memory as to who a defendant is and which defendant is which.  The officer stated that he could not tell which defendant was which although he knew they were to the two women at the crime scene.   The Court of Appeals reasoned that "OCGA @ 24-9-69 permits a witness to refresh and assist his memory by the use of any written instrument or memorandum, and does not require the written document so used to have been prepared by the witness, so long as the witness tesifies from his personal recollection.  As long a witness is willing to swear from his memory as refreshed, his memory may be refreshed by any kind of stimulus, a song, or a face, or a newspaper item. 

    Although a disturbing case in some instances, it is a good case for DUI defense when employing officer training manuals for field sobriety evaluations and dui detection, and the Intoxilyzer 5000 operators training manual and Intoxilyzer 5000 refresher course manual.   These manuals are a rich source of information for use in cross examining an Officer and demonstrating incompetence.